[Federal Register Volume 61, Number 72 (Friday, April 12, 1996)]
[Rules and Regulations]
[Pages 16229-16230]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-8456]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 0
[FCC 95-471]
Authority To Issue Subpoenas
AGENCY: Federal Communications Commission.
ACTION: Final rule; Order on Reconsideration.
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SUMMARY: The Commission ruled on two petitions for reconsideration of
its earlier order (FCC 94-319; released November 21, 1994) adopting
rules to permit the Chief, Common Carrier Bureau, to issue subpoenas in
matters involving allegations of unlawful conduct by common carriers
under Title II of the Communications Act of 1934, as amended. One
petitioner argued that the Commission should reconsider its delegation
of authority and should issue a notice of proposed rulemaking to
solicit comments on the proper scope of delegation. The other
petitioner argued that the delegation of subpoena power is
unconstitutional and that the Commission should limit the scope of
subpoena power granted to the Bureau accordingly. The Commission found
that the petitioners arguments were without merit. The Commission
decided on reconsideration, however, that some modification of the
earlier order was appropriate. On its own motion, the Commission issued
an order (``Amendment of Part 0'') delegating similar authority to
other bureaus within the Commission (FCC 95-213; released June 9,
1995). This modification of the rules required that the delegation of
authority to other bureaus be conditioned on an approval from the
Office of General Counsel, that the bureaus only be authorized to issue
``non-hearing-related'' subpoenas, and that the bureaus have a broad
delegation of subpoena authority over matters within their
jurisdiction. The Commission will amend its rules for the purpose of
authorizing the Chief of the Common Carrier Bureau, with the approval
of the Office of the General Counsel, to issue non-hearing related
subpoenas for the attendance of witnesses and the production of
documents deemed relevant by the Bureau, to add language making it
consistent with the Commission's Amendment of Part 0.
EFFECTIVE DATE: April 12, 1996.
FOR FURTHER INFORMATION CONTACT: Heather McDowell, Enforcement
Division, Common Carrier Bureau, (202) 418-0960.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's order
in FCC 95-471, adopted November 27, 1995, and released February 9,
1996. The full text of the rule is available for inspection and copying
during normal business hours in the FCC Reference Center, Room 239,
1919 M Street, N.W., Washington, D.C. 20554. The full text of this rule
may also be purchased from the Commission's duplicating contractor,
International Transcription Services, 2100 M Street, N.W., Suite 140,
Washington, D. C. 20037, (202) 857-3800.
Summary of Order
1. In this Order on Reconsideration, the Commission addresses
petitions filed by ICORE and the Personal Communications Industry
Association (``PCIA'') seeking reconsideration of the Commission's
order (``Subpoena Order'') (59 FR 66487, published December 27, 1994)
delegating certain investigative authority to the Chief, Common Carrier
Bureau (``Bureau''). For the reasons set forth below, the Commission
denies both petitions. The Commission does, however, on its own motion,
add several modifications to the Bureau's delegated authority to issue
subpoenas.
2. In its petition, PCIA argues that the Commission should
reconsider its delegation of subpoena authority to the Bureau and
should instead issue a notice of proposed rulemaking to solicit comment
on the proper scope of the delegation and to allow for an exploration
of the concerns as well of the benefits of such a delegation. ICORE, in
its petition, asserts that the delegation of subpoena authority to the
Bureau is unconstitutional to the extent that it can be construed as
applicable to the
[[Page 16230]]
investigation of connecting carriers. ICORE contends that because the
Commission itself does not have the authority to issue subpoenas to
connecting carriers under Title II of the Communications Act of 1934,
as amended, it should limit the scope of the subpoena power granted to
the Bureau accordingly.
I. Discussion
3. Neither PCIA's nor ICORE's arguments are meritorious. PCIA makes
no persuasive argument to support its claim that the Commission should
have initiated a notice and comment rulemaking proceeding to consider
the adoption of rules delegating subpoena authority to the Bureau. The
Commission emphasizes again that its decision to amend Section 0.291 of
its rules to grant the Bureau subpoena power pertains to agency
organization, procedure, or practice. Consequently, the notice and
comment requirement and the effective date provisions contained in
Sections 553(b) and 553(d) of the Administrative Procedure Act do not
apply.
4. Similarly, ICORE's argument that the Commission does not have
the authority to issue subpoenas to connecting carriers and, therefore,
should limit the Bureau's subpoena power accordingly is unavailing. The
Commission determined that it need not resolve in this proceeding the
question of whether it has the authority to issue subpoenas to
connecting carriers. The Subpoena Order simply delegates to the Bureau
subpoena authority properly exercised by the Commission. ICORE has
provided no support for its contention that this delegation is beyond
the scope of the Commission's authority or jurisdiction.
5. The Commission determined, however, that some modification to
the Bureau's subpoena authority is appropriate. The Commission recently
issued, on its own motion, an order (``Amendment of Part 0'') (60 FR
35503, published July 10, 1995) delegating similar authority to other
bureaus within the Commission. The delegation of authority in that
order differed from the delegation contained in the Subpoena Order in
three respects. First, the Commission delegated subpoena authority to
the bureaus on the condition that before the issuance of a subpoena,
each bureau would obtain the approval of the Office of General Counsel
(``OGC''). In conformance with this order, and in keeping with the
Commission's intent to make language in the delegations of authority to
issue subpoenas of all bureaus conform to a requirement for prior
approval by OGC, the Commission will amend Section 0.291(h) to add
additional language requiring OGC approval before a subpoena is issued.
6. Second, in Amendment of Part 0, the Commission qualified the
type of subpoena that may be authorized by the bureaus. Specifically,
the Commission stated that they are authorized to issue only ``non-
hearing related'' subpoenas. The delegation of subpoena authority to
the Bureau under Section 0.291(h) will be revised to include this
qualification.
7. Third, instead of limiting the other bureaus' subpoena authority
to investigations involving violations of particular sections or titles
within the Act, the Commission generally granted each of them a broad
delegation of subpoena authority over matters within their
jurisdiction. The Commission will, therefore, modify the delegation of
authority to the Common Carrier Bureau to be consistent in this regard.
II. Conclusion and Ordering Clauses
8. For the reasons set forth herein, the Commission denies the
petitions for reconsideration submitted by PCIA and ICORE. The
Commission also makes certain revisions to its delegation of subpoena
authority to the Bureau. On its own motion, the Commission amends
Section 0.291(h) to require the Chief, Common Carrier Bureau to obtain
the approval of OGC prior to the issuance of a subpoena, to qualify the
type of subpoena that may be authorized, and to extend the delegation
of the Bureau's subpoena authority.
9. Accordingly, it is ordered, pursuant to Sections 4(i), 4(j), and
405(a) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i),
154(j), and 405(a), that the Petitions for Reconsideration filed by
PCIA and ICORE ARE DENIED.
10. It is further ordered, pursuant to Sections 4(i) and 4(j) of
the Communications Act of 1934, as amended, 47 U.S.C. 154(i), and
154(j), that Section 0.291(j) of the Commission's rules, 47 CFR 0.291,
IS AMENDED as set forth below. The requirement of notice and comment
rule making contained in 5 U.S.C. 553(b) and the effective date
provisions of 5 U.S.C. 553(d) do not apply because this amendment
concerns matters of agency organization, procedure, or practice. See 5
U.S.C. 553(b)(A), (d).
11. It is further ordered that this revision to Section 0.291(h),
as set forth below, is effective April 12, 1996.
List of Subjects in 47 CFR Part 0
Organization and functions: (Government agencies).
Federal Communications Commission.
William F. Caton,
Acting Secretary .
Rule Changes
Title 47 of the Code of Federal Regulations, Part 0, is amended as
follows:
PART 0--COMMISSION ORGANIZATION
1. The authority citation for Part 0 continues to read as follows:
Authority: Secs. 5, 48 Stat. 1068, as amended; 47 U.S.C. 155.
2. Section 0.291(h) is revised to read as follows:
Sec. 0.291 Authority delegated.
* * * * *
(h) Authority concerning the issuance of subpoenas. The Chief of
the Common Carrier Bureau or her/his designee is authorized to issue
non-hearing related subpoenas for the attendance and testimony of
witnesses and the production of books, papers, correspondence,
memoranda, schedules of charges, contracts, agreements, and any other
records deemed relevant to the investigation of matters within the
jurisdiction of the Common Carrier Bureau. Before issuing a subpoena,
the Bureau shall obtain the approval of the Office of General Counsel.
[FR Doc. 96-8456 Filed 4-11-96; 8:45 am]
BILLING CODE 6712-01-P
